Existing law requires farm labor contractors to be licensed by
the Labor Commissioner and to comply with specified employment
laws applicable to farm labor contractors. Under existing law, a
person who violates farm labor contractor requirements is guilty
of a misdemeanor punishable by specified fines, or imprisonment
in the county jail for not more than 6 months, or both.

This bill, in addition, would make a farm labor contractor
successor to any predecessor farm labor contractor that owed wages
or penalties to a former employee of the predecessor, whether the
predecessor was a licensee or not, liable for those wages and
penalties, if the successor farm labor contractor meets one or more
specified criteria. By imposing a new requirement on farm labor
contractor successors, the violation of which would be a crime,
the bill would impose a state-mandated local program.

AB 1744 has been signed into law. Current law under Labor Code § 226 requires every employer, semimonthly or at the time of each payment of wages, to furnish each employee with an accurate itemized statement in writing showing certain information including hours worked, pay rates, deductions and similar information. Current law provides that a knowing and intentional violation of this provision is a misdemeanor. AB 1744 adds a requirement for temporary services employers to include the rate of pay and the total hours worked for each assignment, with certain specified exceptions.
Temporary services employers must also include the physical address of the main office, the mailing address
if different from the physical address of the main office, and the
telephone number of the legal entity for whom the employee will
perform work.

The law becomes effective July 1, 2013. It will incorporate changes to Labor Code § 226 under SB 1255 and AB 2674, and shall be chaptered
last among those three bills.

SB 1255 has been signed into law. Labor Code § 226 has teeth again, as SB 1255 restores and clarifies the itemized wage statement requirements of the Labor Code after several court decisions weakened the statute's worker protections. This bill provides that an employee is deemed to suffer injury if the employer fails to provide accurate and complete information and the employee cannot promptly and easily determine from the wage statement alone all of the information required by the statute: the amount of the gross or net wages paid to the employee during the pay period, deductions made from the gross wages to determine the net wages paid to the employee during the pay period, the name and address of the employer or legal entity that secured the services of the employer, and the name of the employee and only the last 4 digits of the social security number or employee identification number.

California Governor Arnold Schwarzenegger has vetoedSB 903. Existing law provides that an action by the Division of Labor Standards Enforcement for collection of a statutory penalty or fee must be commenced within one year after the penalty or fee becomes final. SB 903 would have extended the period within which the division may commence a collection action, as defined, from one year to 3 years.

I am returning Senate Bill 903 without my signature. This bill would extend the period of time within which the Division of Labor Standards Enforcement (DLSE) may commence a collection action for recovery of civil penalties from one year to three years from the date the penalty or fee became final.

While I appreciate the author’s attempts to ensure that DLSE is afforded enough time to initiate legal proceedings to collect penalties, there has been no clear demonstration that existing law presents any significant difficulty for the division.

Since an extension of the statute of limitations is unnecessary, I am returning this bill without my signature.

The bill would not have affected limitations periods for private actions to collect penalties.

The Supreme Court has extended its time to grant or deny a petition for review that was filed in January in Brewer v. Premier Golf Properties (2008) 168 Cal.App.4th 1243. We discussed the opinion in a post that can be found at this link. The case was notable both for declaring punitive damages unavailable in claims made for Labor Code wage-and-hour violations, and for upholding the trial court's award for meal period and rest period violations. The time for granting or denying review in the above-entitled matter is now extended to and including April 8, 2009, or the date upon which review is either granted or denied.

The First District Court of Appeal has held that penalty wages (waiting time penalties) are not recoverable under the Unfair Competition Law as restitution. Pineda v. Bank of America (2009) __ Cal.App.4th __.

Plaintiff Jorge A. Pineda appeals an adverse judgment entered after the trial court granted a motion for judgment on the pleadings by defendant Bank of America, N.A. He contends that the court applied the wrong statute of limitations to his claim under Labor Code section 203 for penalties incurred for the late payment of wages; that the court erred in concluding that section 203 penalties are not restitution within the meaning of Business and Professions Code section 17203; and that the court abused its discretion in denying him leave to amend. ... In the published portion of the opinion we affirm the trial court’s conclusion that section 203 penalties may not be recovered as restitution under Business and Professions Code section 17203.

The plaintiff acknowledged that all wages due him were paid before the complaint was filed, therefore, the Court of Appeal followed McCoy v. Superior Court(2007) 157 Cal.App.4th 225, and rejected his contention that the court erred in applying the one-year statute of limitations on actions to recover penalties (Code of Civil Procedure § 340(a)). Furthermore, the Court of Appeal found that the trial court did not abuse its discretion in denying plaintiff leave to amend his putative class action complaint to substitute or add a plaintiff for whom the waiting time penalties would be timely under the one-year statute.

the dictum in Murphy, supra, 40 Cal.4th at pages 1108-1109 (“the Legislature expressly provided that a suit seeking to enforce the section 203 penalty would be subject to the same three-year statute of limitations as an action to recover wages”) does not require a contrary conclusion. (McCoy, supra, 157 Cal.App.4th at p. 233.) ...Leave to amend a complaint is thus entrusted to the sound discretion of the trial court. ‘. . . The exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse. More importantly, the discretion to be exercised is that of the trial court, not that of the reviewing court. Thus, even if the reviewing court might have ruled otherwise in the first instance, the trial court’s order will yet not be reversed unless, as a matter of law, it is not supported by the record.’ ” (Haley v. Dow Lewis Motors, Inc. (1999) 72 Cal.App.4th 497, 506.) Here, the trial court explained that “given that plaintiff has had several months to locate a substitute plaintiff/class representative and had thus far been unable to do so, if I granted leave to amend, this case would effectively become a lawsuit in search of a plaintiff, which while within my discretion to allow, I fail to see why I should. Plaintiff and his counsel have known since late November 2007 [when McCoy was decided] that there were serious questions as to the viability of the plaintiff as a class representative.”

The opinion was issued in December and ordered published last week. You can download the full text of Pineda here in PDF or Word format.

A petition for review has been filed in Brinkley v. Public Storage, Inc. (2008) 167 Cal.App.4th 1278, the paystub violation and meal and rest break case that was published on October 28, 2008. We previously discussed Brinkley in posts that can be found here and here. We think that, even if there was no Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25, the Brinkley opinion's break with Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949 would make a compelling case for Supreme Court review. Among other things, Brinkley draws the conclusion that it would be "impossible" for employers with large work forces to enforce meal breaks; that there is no requirement for employers to schedule breaks within the first five hours; and that employers only have to make breaks available, applying a standard that equates the "provide" language in the meal period regulations with the "permit and authorize" language of the rest period regulations.

You can download Brinkley here in pdf or MS Word format. The Supreme Court has 60 days from December 4, 2008, to decide whether to grant or deny review. Absent an order granting themselves another 30 days, which is somewhat unlikely in this case, that means that a decision on the petition for review can be expected on or before January 28, 2009. We expect the Supreme Court to issue a "grant and hold" review order, deeming this a related case to Brinker Restaurant Corp. v. Superior Court.

We offer a hearty welcome to those of you who found this blog after attending Bridgeport's seminar on Wage & Hour litigation at UCLA on Tuesday and Wednesday. Every time I present something on recent developments in wage and hour law, I recite the mantra that this is one of the most busily changing areas of practice, and that rarely does a week go by without some significant development in the law coming from the courts, the legislatures, the DLSE or the DOL. Usually, something interesting pops up in the first few days after the seminar, and this was no exception.

The question of whether an aggrieved employee is entitled to punitive damages in an overtime case had never been squarely addressed in a published holding in a California case. The closest thing we had to a ruling on that issue was a bit of dictum in Gentry v. Superior Court (2007) 42 Cal.4th 443, that began with "Although exemplary damages are not available in overtime suits (see section 1194.2...)"

The employees would argue Greenberg v. Western Turf Ass'n (1903) 140 Cal.357, 73 P. 1050, in which the California Supreme Court upheld the imposition of punitive damages where a statutory penalty had already been awarded, because it determined that the civil penalty was not meant to punish. Labor Code penalties, similarly, are not meant to punish, therefore, punitive damages are permitted for certain types of Labor Code violations where the defendant is guilty of blatant violations of law. See Bender v. Darden Restaurants, Inc. (2002) 26 Fed.Appx. 726 (compensatory damages in the sum of $9,860 and punitive damages in the sum of $943,000 for one plaintiff, and compensatory damages in the sum of $5,970 and punitive damages in the sum of $890,000 for the other plaintiff, all based upon denied meal and rest periods.)

Now, the analysis is much clearer:

"[P]unitive damages are not recoverable when liability is premised solely on the employer's violation of the Labor Code statutes that regulate meal and rest breaks, pay stubs, and minimum wage laws." Brewer v. Premier Golf Properties (2008) __ Cal.App.4th __. "Labor Code statutes regulating meal and rest breaks, pay stubs, and minimum wages provide express statutory remedies, including penalties for violation of those statutes that are punitive in nature, that are available when an employer has violated those provisions, and are exclusive remedy available for such statutory violations absent evidence that statutory remedy is inadequate."

It is left to our imagination what kind of evidentiary showing would be necessary to establish that the statutory remedy under the Labor Code would be inadequate. We suspect that this holding would not have compelled a different result under so-called "slavery" cases, such as Bureerong v. Uvawas (1996) 922 F.Supp. 1450, where the District Court permitted punitive damages to be asserted in a wage claim brought by garment workers who were denied minimum wage and overtime.

Elsewhere in the Brewer opinion, the court upheld the trial court's award of $6,000 for unpaid meal and rest break wages (Labor Code § 226.7), $4,000 in pay stub penalties (Labor Code § 226), and $15,300 for "minimum wage" penalties (Labor Code § 1197.1). The court rejected the employer's statute of limitations defense on the penalties, rejected the employee's appeal of an order denying a JNOV based upon a claim for waiting time penalties, and held that the plaintiff had no obligation to exhaust any administrative remedies as a condition to the recovery of any penalties. The last point was founded upon the holding in Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 133-136 that a party's failure to exhaust administrative remedies may not be raised for the first time in the appeal from the allegedly void judgment.

The published part of the opinion also addressed various FEHA issues, which is off topic for us, and we will leave that for others to discuss. For a the next few weeks, you will be able to download the full text of the opinion in Brewer here in PDF or MS Word format.

We did a follow up earlier this week about a case we thought might result in a published opinion on the issue of restitution under the Unfair Competition Law for waiting time penalties. Although that case resulted in a postcard denial of the defendant's writ petition, there are at least two other cases currently before the Courts of Appeal dealing with this issue of waiting time penalties under Labor Code § 203 being recoverable as restitution under Business & Professions Code § 17203.

Division One is unable to proceed with the above entitled matter because Associate Justice Rothschild has recused herself, and there are two vacanices, leaving only one Justice in the division. The Standards and Guidelines for Judical Assignments promulgated by the Administrative Office of the Courts allow only one Justice Pro Tempore on a case. This situation has been reported to the Administrative Presiding Justice Roger W. Boren in accordance with California Rules of Court, 10.1004, subdivision (b) and (c) (4), 10.1008 and 10.1012.

Another case is pending in the First Appellate District. In Pineda v. Bank of America, Case No. A122022, the Court of Appeal will be considering that issue, along with an issue concerning the statute of limitations for waiting time penalties where the underlying wages are no longer part of the claims, as aprt of a review of an order on a motion for judgment on the pleadings.

Back in May, we were talking about a Orange County Superior Court order holding that waiting time penalties under Labor Code § 203 were recoverable as restitution under Business & Professions Code § 17203. In Ybarra v. Aramark Corp., No. 30-2008-00180008-CU-OE-CXC, the court treated section 203's "wages of the employee [that] shall continue as a penalty" as ordinary wages. Apparently, I was busy recovering from my one of my serial surgeries when the followup was timely, but two months later, the 4th District summarily denied Aramark's writ petition in Aramark Corporation v. Superior Court.

The Supreme Court has denied petitions for review and depublication in Amaral v. Cintas Corporation No. 2 (2008) 163 Cal.App.4th 1157. Amaral addressed the constitutionality and application of a living wage ordinance enacted by the City of Hayward and incorporated into its municipal contracts, as well as several issues regarding penalties, fees and costs in wage and hour cases. Cintas was the petitioner seeking review. The Supreme Court docket reflects that both sides sought depublication or partial depublication, and each opposed the other's depublication requests. There were depublication requests and oppositions to depublication requests filed by various non-parties, too. We discussed the opinion in a June post that can be found at this link.

Until last month, no California appellate decision had construed the requirements of any municipality’s living wage ordinance, or addressed the constitutional challenges to any such ordinances. Now, however, most of the defenses commonly raised when employers challenge living wage ordinances have been rejected in an opinion published last month by the First District Court of Appeal in Amaral v. Cintas Corporation No. 2 (2008) __ Cal.App.4th __. Amaral addressed the constitutionality and application of a living wage ordinance enacted by the City of Hayward and incorporated into its municipal contracts. Defendant Cintas entered into such contracts with the City, but did not provide the minimum wages or benefits required by the ordinance to employees who worked in the company’s stockroom or laundry production facilities, which are located outside the City of Hayward. Some of those employees filed a class action seeking the living wages due, benefits, civil penalties and waiting time penalties. On cross-motions for summary judgment, the trial court found that Cintas violated the ordinance, which was enforceable; that it breached its contracts with the City, and violated the Unfair Competition Law and numerous Labor Code provisions. The court awarded back wages and unpaid benefits, imposed penalties under the Private Attorneys General Act of 2004 and awarded plaintiffs statutory attorneys’ fees and costs. However, the trial court found that, prior to the determination of its legal duties under the new ordinance, Cintas’s conduct was not “willful” so as to justify waiting time penalties. The Court of Appeal affirmed all of the trial court's rulings. The opinion is most noteworthy for its analysis of the constitutionality and vagueness attacks on the living wage ordinance, but for wage and hour lawyers, its 60+ pages were full of interesting analysis of wage and hour issues.

At issue was Hayward's Living Wage Ordinance, which provides:

Service contractors subject to this Ordinance shall pay their employees a wage of no less than eight dollars ($8.00) per hour, if health benefits are paid to the employees, or nine dollars and twenty-five cents ($9.25) per hour if no such health benefits are paid.” (Hayward Mun. Code, § 2-14.020, subd. (c).) For purposes of the ordinance, an employee is defined as “any individual employed by a service contractor on or under the authority of any contract for services with the City . . . .” (Hayward Mun. Code, § 2-14.010, subd. (c).) Considering these two provisions together, the plain language of the ordinance requires contractors to compensate every individual they employ to perform work on or under a service contract with Hayward with a wage of at least $9.25 per hour, or $8.00 per hour if the employer provides health benefits.

The court first disposed of Cintas's constitutional arguments:

Cintas’s first constitutional challenge to the LWO rests on article XI, section 7 of the California Constitution, a provision which Cintas contends prohibits attempts by a municipality to exercise power outside its territorial boundaries. However, the language of the provision and cases interpreting it make it clear the prohibition applies only where a local government exercises its regulatory or police power, as opposed to its contracting or proprietary power. (Burns Internat. Security Services Corp. v. County of Los Angeles (2004) 123 Cal.App.4th 162, 168....Cintas also argues the LWO is so vague that it violates due process under the federal and state constitutions. “[D]ue process of law is violated by ‘a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’ [Citations.]” (Britt v. City of Pomona (1990) 223 Cal.App.3d 265, 278.) It is true that the terms of the LWO do not spell out precisely how the ordinance will apply in situations where contractors perform work outside of Hayward or commingle an employee’s contract-related work with work for other customers. However, due process “does not . . . require that statutes must be drafted with the precision of a laser.” (Personal Watercraft Coalition v. Marin County Bd. of Supervisors, supra, 100 Cal.App.4th at p. 138.) “ ‘ “Reasonable certainty is all that is required. . . .” [Citation.] . . .’ [Citations].”

Cintas also contended that the plaintiff class members did not fit the LWO’s definition of employees because they rendered a service to Cintas, not to the City. The court noted that this argument was waived because it was not presented to the trial court, but went on to add that "[i]t is also nonsensical. ... When they laundered and maintained uniforms used by the City of Hayward, plaintiffs were carrying out Cintas’s obligations under service contracts with the City. Accordingly, these employees were working “on or under the authority of” a service contract."

The court rejected claims that the employees lacked a private right of action to enforce the living wage ordinance.

This issue has been addressed by courts of appeal in the analogous context of California’s prevailing wage law. (Lab. Code, §§ 90.5, 1720-1861.) This law requires that all contractors and subcontractors working on a public works contract must pay their employees the prevailing wage rate for work performed on the contract. (Lab. Code, §§ 1771, 1774.) Although the Labor Code imposes a statutory duty to pay prevailing wages and the prevailing wage law is incorporated into public works contracts, our Supreme Court has not yet decided whether employees have a right to enforce the prevailing wage law absent a specific provision in their employment contracts. (Department of Industrial Relations v. Fidelity Roof Co. (1997) 60 Cal.App.4th 411, 425 (Fidelity Roof); see Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 969, fn. 5.) Two appellate court decisions have considered the issue, however, and both conclude aggrieved employees are third party beneficiaries who may sue to enforce a contractor’s promise to pay prevailing wages.

Cintas also failed in its claim that the enforcement of Labor Code penalties under the Private Attorneys General Act (PAGA), Labor Code § 2698 et seq., constituted an unlawful retroactive application of a new statute. PAGA went into effect on January 1, 2004. PAGA allowed aggrieved employees to recover Labor Code penalties directly from their employers, whereas only the Labor Commissioner could do so before. Because PAGA did not become effective until after plaintiffs filed their lawsuit, Cintas argued its provisions could not be applied retroactively. The trial court and the Court of Appeal disagreed.

In this case, the only effect of the new statute was to allow private parties—class members who are present or former employees of Cintas—to recover penalties that previously could have been recovered only by the state Labor Commissioner. This change did not increase Cintas’s liability in any way, because the Labor Commissioner could have recovered the same penalties for Cintas’s violations before the passage of PAGA. It does not matter that Cintas’s wrongful conduct occurred before PAGA was enacted because the legal consequences of this conduct remained the same. “A statute is retroactive if it substantially changes the legal effect of past events. [Citations.] A statute does not operate retroactively merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment. [Citations.]” (Kizer v. Hanna (1989) 48 Cal.3d 1, 7-8.) Nor does it matter that Cintas may have expected to be held accountable for penalties to the Labor Commissioner instead of to plaintiff class members. “A statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute’s enactment [citation] or upsets expectations based in prior law. Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.” (Landgraf v. USI Film Products, supra, 511 U.S. at pp. 269-270, fn. omitted.) Because PAGA did not increase Cintas’s liability for Labor Code penalties, its application in this case was not retroactive.

The Court of Appeal also found support for this position in the Supreme Court’s decision in Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, regarding the effect of Proposition 64's amendment of the standing provisions of the unfair competition law.

The Court upheld the trial court's findings of violations of Labor Code § 223: “Where any statute or contract requires an employer to maintain the designated wage scale, it shall be unlawful to secretly pay a lower wage while purporting to pay the wage designated by statute or by contract.”

The court addressed the meaning of "initial" violations under penalty provisions which increase for "subsequent violations". These statutes, which are substantially identical, provide for civil penalties as follows: "(a) For any initial violation, [fifty dollars ($50)] for each failure to pay each employee. (b) For each subsequent violation, or any willful or intentional violation, [one hundred dollars ($100)] for each failure to pay each employee...." The employees asserted that a violation occurs every pay period that an employee’s wages are underpaid, and that the first underpayment constitutes an “initial” violation, and all future pay periods are “subsequent” violations, penalized at the higher rate. Cintas argued that an employer could not be penalized at the higher rate for subsequent violations until it received some notice that its previous underpayment was a violation of the law. The court agreed with a different approach set forth in a February 22, 1984 DLSE memorandum.

an “initial” violation is “[a]ny violation occurring [after the penalty becomes law], regardless of whether penalties were assessed,” whereas a “subsequent” violation is “[a]ny violation which occurs after notice of a previous violation, regardless of whether penalties were assessed.” In describing how an investigating deputy should calculate penalties, the memorandum states: “If the violation is an initial violation, the citing officer will assess a penalty of $50 per each employee per each pay period. [¶] If the violation is a subsequent violation, the citing officer will assess a penalty of $100 per each employee per each pay period.”...The statutes state that a penalty for an initial violation is to be imposed “for each failure to pay each employee.” (§§ 210, subd. (a), 225, subd. (a).) This language conveys two things. First, by specifying a $50 penalty must be imposed “for each failure to pay each employee” (italics added), the language contemplates that an “initial violation” can result in more than one penalty at the $50 level. In other words, multiple $50 penalties can result from a single initial violation. The only way this could conceivably occur is if penalties are assessed at each pay period. ...Until the employer has been notified that it is violating a Labor Code provision (whether or not the Commissioner or court chooses to impose penalties), the employer cannot be presumed to be aware that its continuing underpayment of employees is a “violation” subject to penalties. However, after the employer has learned its conduct violates the Labor Code, the employer is on notice that any future violations will be punished just the same as violations that are willful or intentional—i.e., they will be punished at twice the rate of penalties that could have been imposed or that were imposed for the initial violation. Accordingly, we conclude the trial court properly assessed penalties against Cintas under sections 210 and 225.5 at the rate of $50 per pay period per class member.

The court rejected Cintas's claim that the trial court incorrectly determined that it lacked discretion not to award civil penalties (as opposed to discretion to reduce them):

Sections 210 and 225.5 state that “every person who” fails to pay wages (§ 210) or unlawfully withholds wages due (§ 225.5) “shall be subject to a civil penalty” as described in the statute. The parties disagree about whether the trial court was required to impose penalties under sections 210 and 225.5, or whether it had discretion to forgo imposing any penalties because Cintas had a good faith dispute about whether wages were due. No authority brought to our attention supports Cintas’s claim of legal error. Cintas argues that a trial court imposing PAGA penalties can exercise its discretion based only on the considerations mentioned in section 2699, subdivision (e)(2). This argument rests on a misunderstanding of the nature of PAGA penalties: As we have explained, they are mandatory, not discretionary.

The court rejected Cintas's claims that the $258,900 penalty assessment was confiscatory.

The court received evidence that Cintas’s parent company had $2.81 billion in sales and $272 million in profits during fiscal year 2004. The penalty award is certainly not “astronomical” in comparison. (See, e.g., City and County of San Francisco v. Sainez (2000) 77 Cal.App.4th 1302, 1318-1319 [approving $663,000 penalty for housing code violations, which represented about 28.4 percent of the defendants’ net worth].) The penalty award, which totaled less than one-third of plaintiffs’ $804,783 damage award, was also proportional to Cintas’s misconduct. (See Kinney v. Vaccari (1980) 27 Cal.3d 348, 356 [punitive assessment should be proportional to defendant’s misconduct, sufficient to achieve penalty’s deterrent purpose, and not constitutionally excessive].)

Some of the statutory penalties sought by the plaintiffs, including waiting time penalties under section 203 and paystub penalties under section 226, are imposed only if an employers’ violation was “willful” or “knowing.” The trial court concluded that Cintas’s conduct was not “willful,” and it declined to impose or increase penalties under all provisions that include a “willfulness” component. The Court of Appeal followed Barnhill v. Robert Saunders & Co. (1981) 125 Cal.App.3d 1 and decided that the failure to pay wages was not “willful” because the legal duty to pay them was unclear at the time of the violation.

Even more so than in Barnhill, the legal obligations imposed on employers by the LWO were unclear at the time of Cintas’s violations. As Cintas’s vigorous defense of this class action has made clear, numerous arguments exist concerning the constitutionality of the LWO and its proper interpretation.

In so holding, the court distinguished the facts of this case from those in Armenta v. Osmose, Inc. (2005) 135 Cal.App.4th 314, where the presumption of good faith was outweighed by evidence that the employer was in fact aware that its employees were not being fully compensated for their time, and Road Sprinkler Fitters Local Union No. 669 v. G & G Fire Sprinklers, Inc. (2002) 102 Cal.App.4th 765, where the employer’s legal obligation was clear and substantial evidence supported the lower court’s finding that the employer had acted in bad faith.

The court passed on the opportunity to address whether interest could be awarded on the restitutionary relief under the Unfair Competition Law claims pursuant to Civil Code § 3287(a), which provides for interest on an award of “damages certain, or capable of being made certain by calculation.” An award of interest was also authorized under the Labor Code for the wage claims, so the decision would have no practical effect on the judgment.

Finally, the court upheld the trial court's award of fees to plaintiffs’ attorneys based upon a lodestar multiplier of 1.65, which was less than the multiplier of 2.0 requested by the plaintiffs.

There certainly is a change that the Supreme Court will review this opinion, and the PAGA and other penalty issues add to the likelihood of review. Until and unless the case gets reviewed or depublished, however, it puts an end to the strongest and most frequently asserted defenses to living wage ordinances in California. You can download Amaral v. Cintas Corporation No. 2 here in pdf or word format.